Tag: law

I know some trans people aren’t interested the fight over Trump’s ban on transgender people serving in the military. But, as I learned Friday at the Transgender Law Institute, if the ban is upheld by the Supreme Court, its effects will go far beyond the armed forces. According to Shannon Minter, “the negative ramifications of a loss in the courts will be terrible.” Minter is the Legal Director of the National Center for Lesbian Rights, which, with GLBTQ Advocates and Defenders, is challenging the ban in the courts.

A little background: In June of 2016, the Department of Defense announced that transgender people could serve openly in the military. The military would also provide transition related medical care.

Six months into his first term, Trump announced via (where else) Twitter that the ban would be put back in place.

The same massive bureaucratic apparatus that had, after a year of research, found the ban irrational and developed a thorough implementation plan for allowing trans people to serve openly and provide transition related medical care was forced to do a 180 degree turn and come up with a justification for reversing the policy.

And did it ever. In February of this year, Secretary of Defense James Mattis released a report that recommended reinstating the ban. Most of the arguments supporting the recommendation were boilerplate right wing drivel: the ideas of people with penises showering with women, the “disproportionate cost” of provision of transition related care, and ye olde “unit cohesion” defense. Trans rights advocates have lots of experience responding to these tired canards. You can see how they do so in reply briefs here and here.

The fourth justification is the most worrisome. It takes state-sponsored transphobia to new heights by questioning the very validity of transition-related medical care as a treatment for gender dysphoria. In our brave new post-truth world, Mattis’s underlings cherry-picked unfounded, unpublished, and highly selective research to suggest that hormone therapy and/or surgery do little to help transgender people.

This argument jibes with the right wing’s anti-transgender agenda, most clearly articulated in Ryan Anderson’s When Harry Became Sally: Responding to the Transgender Movement (Encounter Books, 2018), which suggests that transgender people need compassion, but not equal treatment or transition related medical care. You can see this agenda in the new Department of Defense policy: “Transgender persons” without a diagnosis gender dysphoria can serve in their “biological sex.” (Biological sex here means sex assigned at birth.) According to the report, the policy is not a ban on trans people per se, just a ban on people who happen to share the defining characteristic of transgender people–a disconnect between one’s gender identity and the sex assigned at birth.

A reasonable person might think that truth will ultimately prevail, that a policy that ignores the medical and psychiatric consensus and that discounts the lived experiences of hundreds of thousands of transgender people cannot stand. But this is the same administration that changed the rules to allow asbestos, a known carcinogen, into new products. This is the same administration that has proposed rolling back fuel economy standards, despite the fact that its justification is a “denial of basic science.”

Eventually, these cases will be heard by the Supreme Court. If the Court decides that the ban is constitutional, it won’t just affect those who want to serve in the military. The Court’s imprimatur on a report that rejects the idea that surgery and hormones are effective treatments for gender dysphoria will have alarming ripple effects in every area where advocates are working to ensure that trans people get the medical care they need, from prisons to workplaces to public benefit programs such as Medicaid and Medicare. If the Court ultimately sides with the Department of Defense, the transition-related health care of those of us not in the military could well be affected. The Court’s opinion would certainly be used to justify decisions not to pay for surgery or hormones.

****

I want to put the Department of Defense policy in a larger historical context. Before Trump, transgender people were harmed by sex classifications in laws and policies designed to give men more rights and resources or to use M/F for surveillance purposes in descriptions in state records and on identity documents. As I argue in my forthcoming book, trans people were not the intended targets of these policies, we just found ourselves occupying the residual category of legal sex classifications—we’re what the system didn’t anticipate. Even though it’s no longer constitutional to treat men and women differently, classifying people as M or F is still baked into law and policy.

That’s why the battle in the first decades of the transgender rights movement has been to show that the category of women includes trans women and vice versa, that sex and gender discrimination laws cover trans people, that the M or F assigned at birth might not turn out to be the right one for the individual. Over time, these efforts have started to succeed and courts, administrative agencies, and legislatures are coming around. Of course there has been resistance, but it has been gradually evaporating as a result of education and the immense number of trans people coming out.

But the ground has shifted with the Trump administration. Now transgender advocates are no longer fighting accidental erasure. While previous conservative administrations took a more passive approach by simply not supporting trans rights, Trump and Pence are working to codify transphobia by enshrining it in policy across as many agencies as possible. (Their efforts were anticipated by attempts in red state legislatures to make bathroom access based on the sex assigned at birth.) With the Department of Defense policy, transgender issues have been politicized to a degree never yet seen. (Okay, I am overstating the difference in transphobia before and after Trump a little, but the I do think 2017 marked a real shift.)

One might argue that transgender rights movement lost something when it was packaged as a new identity politics group. Absent a handful of historical contingencies—transphobia among second wave feminists, the intensity of the pathologization of transsexuality, Reagan, the revanchist 1980s and the move to assimilate to the norms of the market–it might have been possible to articulate equality for people whose gender identity or expression confounded traditional expectations with broader movements for distributive justice. Socialist feminism, with its attention to bodies, the imbrication of capitalism and gender norms, and the material conditions that make life livable, would have been a better option.

In any case, identity politics, meshing neatly with neoliberalism, was to provide a path to acceptance into the status quo. The neoliberal contract with identity politics was to guarantee formal inclusion, representation, and political equality in exchange for abandoning more radical claims to justice. Writing about black movements for equality, Asad Haider suggests identity politics is “the neutralization of movements against racial oppression.” And the same could be said, has been said, about transgender identity politics.

But the Trump/Pence administration has upended all that, it has canceled the contract. Working closely with the organized religious right, trans identity itself has become a target, as the DoD report makes clear. The trans rights movement now finds itself in the unenviable position of fighting the right wing’s policitization of trans identity with a politics that was conceived when diversity and inclusion were considered positive values. It might be time to shift to a new terrain.